Judge: P2P class-action suit looks like a “fishing expedition”

File-sharing attorneys keep making their private cash settlements, but …

Most of the attorneys who file mass P2P lawsuits do so in a single court. Chicago family-law-turned-copyright attorney John Steele this week broke that pattern and scored a hat trick by filing at least one large-scale pornography lawsuit in each of Illinois' three federal judicial districts: Northern, Central, and Southern. But one federal judge this week worried that Steele is running a "fishing expedition."

Steele has run into some problems in Illinois' Northern District, which includes Chicago; just yesterday, Judge Milton Shadur threw out one of Steele's lawsuits against 300 anonymous defendants, berating Steele and saying, “I don't see any justification at all for this action.”

Steele hasn't been deterred; after all, there are plenty of judges and plenty of courts, and not all of them will see things Shadur's way.

"The judges in our other cases have, for the most part, sided with our clients and dismissed anonymous motions filed by non-parties," he told me yesterday. "We expect to continue to have a majority of the courts find in our favor and allow us to find out who is stealing our client's content."

To that end, Steele has filed two of his recent cases in entirely separate court districts. The first was filed in the Southern District, downstate near St. Louis. Steele tried to avoid the jurisdiction questions that have dogged these lawsuits elsewhere, filing this case as a reverse class-action lawsuit against everyone who illegally shared his client's pornography.

On Tuesday, the day before his run-in with Shadur, Steele filed a second class-action lawsuit in the Central District, which includes the University of Illinois. Steele says he brought the case there because he "used geolocation technology to trace the IP addresses of multiple Defendants to a point of origin within Champaign, Illinois."

Of course, with 1,017 "John Doe" defendants, it's likely that the case could have been brought just about anywhere, including Chicago, where Steele has his offices. But if Steele hoped a change of venue might help his chances, Judge Harold Baker disabused him of that notion within a day. As Steele was getting grilled by Shadur back in Chicago on Wednesday, Baker looked at the class-action filing before him and issued a sharply worded note.

Steele had asked for “expedited discovery,” which would allow him to get the necessary subpoenas more quickly and which could be done without input from any defense lawyer. Judge Baker called the lawsuit a "novel case, which has turned Fed. R. Civ. P. 23 [the class action rule] on its head" and he worried that granting Steele his subpoenas without hearing from the other side would be unfair. The judge instead wants an "adversarial proceeding where questions or claims of privilege or protection could be raised" before signing off on subpoenas, and he directed the court clerk "to refuse to issue any subpoenas to plaintiff’s counsel until further order of the court."

The basic problem here is that the defendants are known only by IP address, so there are no identified defendants who might contest the discovery request. In a similar case in Texas, the judge on his own initiative invited the Electronic Frontier Foundation and Public Citizen to get involved in the case and stand up for the defendants' rights until such time as those defendants were actually identified and could send their own counsel to court. Shortly after this move, the Texas lawyer bringing the case dismissed it, blaming the judge for allowing the public interest groups to get involved.

Summing up his concerns, the judge concluded: "Plainly stated, the court is concerned that the expedited ex parte discovery is a fishing expedition by means of a perversion of the purpose and intent of Fed. R. Civ. P. 23."